When wealthy landowners, Alexander and Diana Darwall, sued a national park authority to stop people pitching their tents on the Dartmoor Commons, few expected the dispute to take a constitutional turn. Yet this was the outcome of Darwall v Dartmoor National Park Authority[2025] UKSC 20, where the Supreme Court’s decisive rejection of the landowners’ claims turned on statutory interpretation, the right to protect private property and the principle of legality, as well as providing a confirmation that the Attorney General should be joined where public rights are at stake.

First Instance and Court of Appeal

The litigation began in January 2023, when Flaux J found in favour of the Darwalls. He held that the Dartmoor Commons Act 1985, which granted a statutory right of access on foot or horseback for open-air recreation, did not confer a right to wild camp without the landowner’s permission. Describing the case as ‘quintessentially a private law dispute’, he heard the dispute in the Chancery Division, after the Dartmoor National Park Authority (DNPA) abandoned its efforts to move the case to the Administrative Court. This forum, Flaux J explained, was appropriate as the Darwalls sought a declaration interpreting s10 of the 1985 Act, rather than challenging an administrative decision by the DNPA. This also meant that the Darwalls’ delay in bringing their action was irrelevant: even though they had acquired the land in 2013, long after the 1985 Act and the making of the DNPA’s 1989 byelaws.

This conclusion was short-lived. A few months later, the Court of Appeal overturned the decision. Sir Geoffrey Vos MR, with whom Underhill and Newey LJJ substantially agreed, took a broader view of the legislative framework, including the National Parks and Access to the Countryside Act 1949. He held that reading the 1985 Act in line with the 1949 legislation, considering their purpose and context, meant that wild camping is included in open-air recreation. This outcome has now been confirmed by the Supreme Court.

Public Land Law

While English and Welsh land law is often considered to be a private law subject, public land law is a significant field in its own right. Many constitutions contain provisions on the right to property – for example, South Africa’s Bill of Rights, Article 25 as well as the Irish Constitution’s articles 40.3.2 and 43. And even though England and Wales lack a codified equivalent, landowners benefit from Article 1, Protocol 1 (A1P1) of the ECHR.

Alongside these constitutional provisions lies a longstanding common law interpretative presumption that while Parliament can deprive a landowner of their property rights, such wording must be clear. In one oft-quoted formulation, Lord Warrington held in Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 that: 

In considering the construction and effect of this Act, the Board is guided by the well-known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms.

The principle is well established: if a landowner is to be deprived of their land or have its use curtailed, the legislative wording can only do so if the language is sufficiently express. In a 2022 planning dispute, DB Symmetry Ltd v  Swindon Borough Council [2022] UKSC 33, Lord Hodge, giving the unanimous judgment of the court, labelled a 1961 invocation of this maxim as ‘an early example of the principle of legality’, equating or upgrading the interpretative presumption to the principle of legality, depending on one’s view.

In July 2024, land lawyers were treated to a further constitutional moment when the Supreme Court, in The Manchester Ship Canal Company Ltd v United Utilities Water [2024] UKSC 22 (MSC 2), explicitly affirmed the existence at common law of a ‘fundamental right to the peaceful enjoyment of property’. Here, the question was whether United Utilities could discharge treated effluent into a canal without the landowner’s consent, relying on their statutory powers. The Supreme Court held not. The fundamental right to the peaceful enjoyment of property, they concluded, brought the principle of legality into play when interpreting the relevant statute so that the landowners could still seek to enforce private law remedies.

The Principle of Legality

Before the Supreme Court, the Darwalls sought to build on MSC 2, claiming that the right to wild camp intruded on their fundamental right to property. Timothy Morshead KC submitted that, regardless of the size of the land at issue, given the Darwalls’ right, the principle of legality would apply to ambiguous and general words. As he contended that the section 10 of the 1985 Act contained both ambiguous and general words curtailing landowner’s rights, any statutory interpretation should protect this now ‘fundamental’ right.

Lords Sales and Stephens, giving the unanimous judgment of the court, engaged with the principle of legality but declined to adopt the ‘fundamental’ language of MSC 2. Instead, they framed the right as the ‘right to protect private property’. Their use of the principle was also outlined in conspicuous sub-headings, including the principle of legality under ‘Other aids to interpretation of section 10’, alongside Hansard, the Hobhouse reports and byelaws, with no indication of hierarchy or application of broader constitutional principle.

Interpreting the 1985 Act, Lords Sales and Stephens turned to the substance of the framework, emphasising the legislation’s balance: landowners’ rights are limited so as to permit open-air recreation but this is offset by the DNPA’s public regulatory powers to make byelaws, appoint wardens and affix notices as well as its independent right to seek possession under s.13. They concluded that this public regulation of use of the Commons is likely to be more effective in protecting the land than individual private claims. And while they held that the principle of legality applies, the court found no ambiguity in the statute and declined to consider the effect of general words.

Parliamentary Limits on Property

The Supreme Court reasoning closely mirrored that of the Court of Appeal. Finding for the DNPA, Sir Geoffrey Vos had noted that Parliament often limits property rights, for example, in leasehold enfranchisement, and that such legislative interventions should be respected applying the same reasoning to ‘open-air recreation’. In Darwall, where the 1985 Act and associated byelaws provide a statutory right of access for open-air recreation and set up a management framework to protect the land from public misuse, Parliamentary limitation is clear. While this may, as the Supreme Court suggested, improve the position of  landowners, the legislation also removes their individual right to sue for trespass. The Darwalls’ private right to protect property has been legislatively limited to facilitate the public interest, recognising the public character of the Dartmoor Commons.

One question that arose explicitly in MSC 2 and implicitly in Darwall, was whether the legislation provided a statutory ouster of common law claims. In MSC 2, the Supreme Court held that on the facts in that case, the landowner, benefitting from their fundamental right and applying the principle of legality when interpreting the legislation, was not precluded from seeking a private law remedy in nuisance: there was no such ouster. In Darwall, conversely, the right to protect private property also triggered the application of the principle of legality, but here the 1985 Act excluded the right to sue for trespass. In one sense this reveals an asymmetry, the constitutionalised right of property in MSC 2 ensures, via the principle of legality, that private law remedies remain, while the right to protect private property in Darwall, which also triggers the principle of legality, could not displace the public’s statutory right to wild camp.

This may draw too stark a distinction between a fundamental right to the peaceful enjoyment of property and the right to protect private property. Even if Lords Sales and Stephens meant to imply that the ‘right to protect private property’ was a private law right, since the principle of legality applied, the interpretative approach was the same.

Nevertheless, the apparent asymmetry illustrates that constitutionalising a landowner’s right of property will not necessarily benefit the public. While this was the outcome in MSC 2, where pollution should reduce, strengthening the Darwalls’ right of property would have limited public benefit. Writing in South Africa, André van der Walt argued that we should acknowledge the ‘relatively modest systemic status of property rights’, and not presume that these should necessarily have priority over other fundamental rights or wider societal concerns. Similarly, analysing the Irish constitution, Rachael Walsh warns that tensions can arise between ‘a generalized commitment to a thick understanding of constitutional property rights’ on the one hand and progressive aims on the other. Questions of ‘over’ or ‘under’ protection of property rights are highly contested. A1P1’s qualified nature, and the Strasbourg court’s emphasis on the margin of appreciation, proportionality and fair balance in A1P1, emphasise the evaluation of an individual landowner’s right within the context of the public interest.

Despite the common law constitutionalisation of a right of property, legislative frameworks outline the strength and scope of property rights. Today, these judgments are for Parliament to make, determining whether property rights should be curtailed, both in relation to ownership (as in leasehold enfranchisement) and use (as with access rights). The court’s role, exemplified in Darwall, is to construe legislation, understanding its effect on landowners’ rights: modern judges are interpreters rather than authors of the right to property. As Viscount Simonds exclaimed in an early planning dispute where the landowner challenged the effect of legislation restricting their right to develop, Belfast Corporation v OD Cars [1960] AD 490:

It is clear that such a diminution of rights can be affected without a cry being raised that Magna Carta is dethroned or a sacred principle of liberty infringed.

Public Land Law and the Attorney General

Darwall also highlights the Supreme Court’s continuing attention to public rights in land. In Day v Shropshire [2023] UKSC 8, the Supreme Court had upheld public trust rights over open space that had not been formally released before a sale to a developer. At the start of the hearing, Lord Reed revealed the court’s discussion that perhaps the Attorney General might be joined as the proper guardian of the public interest in relation to the public trust. He proposed that counsel might take instructions on this point, which they did, though in the end nothing came of the suggestion.

In Darwall, the Supreme Court returned to the role of the Attorney General. Lords Sales and Stephens confirmed that as the Darwalls had sought to restrict statutory rights of public access, the Attorney General should have been joined as a defendant, not least as the DNPA is not an authorised government department (for the purposes of section 17 of the Crown Proceedings Act 1947). They noted that it would have been for the Attorney General to decide what part to play in the proceedings. Even if, once joined, they declined to take an active role, they would still have remained a party to the proceedings. This mattered, according to their Lordships, as only if the Attorney General had been joined as a party could any declaration granted to the Darwalls have bound the public.

The short judgment in Darwall is commendably readable and focused. It leaves some questions unanswered, notably how the ‘fundamental’ right to the peaceful enjoyment of property, A1P1, and the right to protect private property, inter-relate. Nevertheless, the decision confirms that the right to protect private property, coupled with the principle of legality, operates within a statutory and public law framework. Darwall provides a reminder that land law often unfolds on constitutional terrain.

Antonia Layard is Professor of Law and Wai Chi and Stephen Man Fellow in Law at St. Anne’s College, University of Oxford

(Suggested citation: A. Layard, ‘Darwall and the Public Life of Private Property’, U.K. Const. L. Blog (4th June 2025) (available at https://ukconstitutionallaw.org/))